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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Americom Las Vegas Limited Partnership ) File No. EB-02-DV-094
)
Licensee of FM Radio Station KZTQ )
(Formerly KWNZ) ) NAL/Acct. No. 200332800006
Carson City, Nevada ) FRN 0003-7662-92
Facility ID # 53706 )
ORDER ON RECONSIDERATION
Adopted: November 26, 2007 Released: November 29, 2007
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Order on Reconsideration ("Order"), we dismiss the petition
for reconsideration ("petition") filed by Americom Las Vegas Limited
Partnership ("Americom"), licensee of FM radio station KZTQ (Formerly
KWNZ), Carson City, Nevada, of the Commission's Memorandum Opinion and
Order issued December 1, 2006 ("MO&O"). In that MO&O, the Commission
denied Americom's application for review of the Forfeiture Order
issued May 28, 2004, by the Chief, Enforcement Bureau ("Bureau"), in
the amount of ten thousand dollars ($10,000) for willful and repeated
violation of Section 1.1310 of the Commission's Rules ("Rules"). The
noted violations involve Americom's failure to comply with the radio
frequency radiation ("RFR") maximum permissible exposure ("MPE") limit
applicable to KZTQ's transmission facilities and failure to adequately
take measures to prevent the public from accessing areas that exceeded
the RFR exposure limits. As discussed below, we dismiss Americom's
petition because it does not comply with the requirements of Section
1.106(b)(2) of the Rules, and is therefore procedurally defective.
II. BACKGROUND
2. KZTQ's transmission facilities are located on McClellan Peak, near
Carson City, Nevada. The McClellan Peak site is on unfenced, publicly
accessible property managed by the Bureau of Land Management ("BLM"),
approximately 4 kilometers northeast of Carson City. On November 6,
2001, agents from the FCC's San Francisco, California, Field Office
("San Francisco Office") conducted a site inspection at the McClellan
Peak antenna site. There are 13 broadcast stations which transmit from
the McClellan Peak site. During the November 6, 2001, inspection, the
personal RFR monitors worn by the agents began to alarm while in the
vicinity of the KZTQ transmitter site. On May 1, 2002, the FCC's
Denver, Colorado Field Office ("Denver Office") issued a Letter of
Inquiry ("LOI") to Americom and to each of the 12 other broadcast
licensees which transmit from the McClellan Peak site regarding RFR
compliance at the site and advising that a site inspection would take
place on May 15, 2002.
3. On May 14, 2002, FCC agents from the Denver and San Francisco Offices
conducted preliminary measurements in publicly accessible areas
throughout the McClellan Peak site. On May 15, 2002, the agents
returned to the McClellan Peak site and conducted additional
measurements. The measurements taken by the agents on May 15, 2002,
indicated that there were RFR fields in publicly accessible areas at
ground level that exceeded the FCC's MPE limits for the general public
and that KZTQ's operation alone exceeded the MPE limits for the
general public in an unfenced area between the KZTQ transmitter
building and the KZTQ antenna tower.
4. The agents observed that the site was easily accessible to 4-wheel
drive vehicles from a public gravel and dirt roadway off Goni Road.
Two commercial gravel pits were located along the gravel roadway to
the site. An ungated internal dirt road led from the gravel roadway
to the site, with multiple branches to reach the various antenna
structures. The agents observed that there were trails for off-road
4-wheel drive vehicles and all terrain vehicles ("ATVs") along the
gravel roadway and at the site itself. The agents also observed
persons who appeared to be teenagers driving ATVs, ATV tire tracks, a
campfire ring, beer and wine bottles, and other trash indicative of
public use of the BLM site.
5. Additionally, the agents observed that the only signs warning the
public of excessive RFR levels at the KTZQ antenna site were posted at
the front of the site and along the road leading to the site. The
agents also observed that there were no warning signs which could be
seen by persons approaching the unfenced area in which the RFR
exceeded the public MPE limit from the rear of the KZTQ antenna site.
6. Americom submitted its response to the LOI on June 7, 2002 ("LOI
response"). As part of the response, Americom submitted a report of
RFR measurements conducted at the McClellan Peak site on May 15, 2002,
by an Americom consultant. This report shows that RFR fields in an
unfenced area adjacent to the KZTQ tower exceeded the MPE limits for
the general public. Americom stated that out of an abundance of
caution, it had contracted for this location to be fenced.
7. On November 22, 2002, the Bureau issued a Notice of Apparent Liability
for Forfeiture ("NAL") to Americom in the amount of ten thousand
dollars ($10,000) for apparent willful and repeated violations of
Section 1.1310 of the Rules. In its response to the NAL, filed
December 23, 2002 ("NAL response"), Americom sought cancellation of
the proposed monetary forfeiture. Americom argued that there was "only
circumstantial evidence" of recent public use of the area near the
KZTQ transmitter site; that there was "no evidence whatsoever of
public use of the particularized ten square foot area" where Americom
exceeded the RFR MPE limits; that, by providing appropriate signs
warning the public of excessive RFR levels, Americom has in "good
faith" treated the KZTQ transmitter site as "controlled environment"
and implemented a "common sense" approach to RFR compliance which is
consistent with OET Bulletin 65; and that, if it did violate Section
1.1310 of the Rules, the appropriate sanction is admonishment. In its
May 28, 2004, Forfeiture Order, the Bureau rejected these arguments
and imposed a monetary forfeiture of $10,000. In particular, the
Bureau concluded that there was ample evidence of recent public use of
the area near the KZTQ transmitter site; that public use of the area
near the KTZQ transmitter site was sufficient to establish the
applicability of the public exposure limits; that Americom did not
have signs that sufficiently warned the public; and that a monetary
forfeiture - not an admonishment -- is the appropriate sanction for
Americom's violations.
8. In its application for review, Americom argued that "the resolution of
this proceeding hinges on whether Americom reasonably concluded that
the KZTQ Antenna Site . . . was remote and not likely to be visited by
the public, making tower fencing unnecessary, particularly in light of
three posted warning signs." Americom also argued that its treatment
in this proceeding should not be the same as that of the licensee in
A-O Broadcasting Corporation, which also was assessed a monetary
forfeiture of $10,000, but was found to have operated further above
the public RFR exposure limits than Americom and that, if the Bureau
has overruled the "common sense" approach of OET Bulletin 65, it is
obligated to give Americom advance notice of this change but failed to
do so. In its MO&O released December 1, 2006, the Commission rejected
these arguments and affirmed the Bureau's Forfeiture Order. In
particular, the Commission concluded that Americom did not present any
evidence which contradicts the FCC agents' observations indicating
public use of the KZTQ antenna site; that Americom's signs were not
adequate to warn the public; that an RFR violation need not be as
significant as A-O Broadcasting Corporation's violation to warrant
imposition of the full $10,000 base forfeiture amount and that there
was no overruling of the "common sense" approach of OET Bulletin 65.
9. In its petition for reconsideration of the Commission's MO&O, Americom
reiterates arguments already rejected by the Commission. Specifically,
Americom argues that the signage at Americom's transmitter site was
compliant with the "common sense" approach set forth in OET Bulletin
65, that no forfeiture is appropriate because Americom lacked notice
of the "new" RFR standard created by the rulings in this case, and
that the public is not likely to visit Americom's transmitter site.
10. Americom also raises two new arguments. First, Americom claims that
"[i]n analogous contexts, where the facts are unclear or disputed, the
FCC has stayed its enforcement hand." Second, Americom argues that
the site owner, BLM ,was obligated to "encourage `common solutions'
to RFR issues" at Americom's site but did not do so, and therefore a
forfeiture was not appropriate in this case because "the government
limited its role to enforcement, forsaking proactive involvement."
III. DISCUSSION
11. Section 1.106(b)(2) of the Rules provides that where the Commission
has denied an application for review, a petition for reconsideration
will be entertained only if one or more of the following circumstances
are present:
(i) the petition relies on facts which relate to events which have
occurred or circumstances which have changed since the last opportunity to
present such matters, or
(ii) the petition relies on facts unknown to petitioner until after his
last opportunity to present such matters which could not, through the
exercise of ordinary diligence, have been learned prior to such
opportunity.
Section 1.106(b)(3) of the Rules authorizes the Bureau to dismiss as
repetitious "[a] petition for reconsideration of an order denying an
application for review which fails to rely on new facts or changed
circumstances."
12. Americom makes no attempt to establish that its petition meets the
criteria of Section 1.106(b)(2) of the Rules. As discussed below,
Americom does not rely on any facts or events that occurred or
circumstances that have changed since its last opportunity to present
such matters or that were unknown to Americom and could not have been
learned through the exercise of ordinary diligence. Americom's
petition must, therefore, be dismissed as repetitious.
13. Americom's arguments that the signage at Americom's transmitter site
was compliant with the "common sense" approach set forth in OET
Bulletin 65, that no forfeiture is appropriate because Americom lacked
notice of the "new" RFR standard created by the rulings in this case,
and that the public is not likely to visit Americom's transmitter
site, reiterated again in its petition for reconsideration, do not
rely on any facts or events that occurred or circumstances that have
changed since its last opportunity to present such matters or that
were unknown to Americom and could not have been learned through the
exercise of ordinary diligence. Americom's new arguments also fail to
meet the standard set forth in Section 1.106(b)(2).
14. The only newly presented "fact" in either of these arguments is the
claim that the BLM did not take a proactive role in achieving
compliance. Americom had every opportunity to present this claim to
the Bureau before filing its application for review but did not do so.
We find, accordingly, that Americom's new arguments do not rely on any
facts or events that occurred or circumstances that have changed since
its last opportunity to present such matters or that were unknown to
Americom and could not have been learned through the exercise of
ordinary diligence.
15. In sum, Americom has not met the requirements of Section 1.106(b)(2)
of the Rules. Its petition for reconsideration must therefore be
dismissed.
IV. ORDERING CLAUSES
16. Accordingly, IT IS ORDERED that, pursuant to Sections 1.106(b)(2) and
(3) of the Rules, Americom's petition for reconsideration of the
Commission's MO&O IS DISMISSED.
17. Payment of the forfeiture shall be made in the manner provided for in
Section 1.80 of the Rules within 30 days of the release of this Order.
If the forfeiture is not paid within the period specified, the case
may be referred to the Department of Justice for collection pursuant
to Section 504(a) of the Act. Payment of the forfeiture must be made
by credit card through the Commission's Debt and Credit Management
Center at (202) 418-1995, or by check or similar instrument, payable
to the order of the Federal Communications Commission. The payment
must include the NAL/Acct. No. and FRN No. referenced above. Payment
by check or money order may be mailed to Federal Communications
Commission, P.O. Box 358340, Pittsburgh, PA 15251-8340. Payment by
overnight mail may be sent to Mellon Bank /LB 358340, 500 Ross Street,
Room 1540670, Pittsburgh, PA 15251. Payment by wire transfer may be
made to ABA Number 043000261, receiving bank Mellon Bank, and account
number 911-6106. Requests for full payment under an installment plan
should be sent to: Associate Managing Director - Financial Operations,
445 12th Street, SW, Room 1A625, Washington, D.C. 20554.
18. IT IS FURTHER ORDERED THAT a copy of this Order shall be sent by
first class mail and certified mail, return receipt requested, to
Americom's counsel Dennis P. Corbett, Esq., and Phillip A. Bonomo,
Esq., Leventhal Senter & Lerman PLLC, 2000 K Street, N.W., Suite 600,
Washington, D.C. 20006-1806.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
Subsequent to the initiation of this proceeding, on February 26, 2004, the
station's call sign was changed to KZTQ.
Americom Las Vegas Limited Partnership, Memorandum Opinion and Order, 21
FCC Rcd 14286 (2006) ("MO&O").
Americom Las Vegas Limited Partnership, Forfeiture Order, 19 FCC Rcd 9643
(Enf. Bur. 2004) ("Forfeiture Order").
47 C.F.R. S: 1.1310.
47 C.F.R. S: 1.106(b)(2).
The personal RFR monitors are designed by the manufacturer to begin
alarming when RFR exposure levels reach 50 percent of the Commission's
occupational exposure limit. The occupational exposure limit is five times
greater than the public exposure limit. Thus, the alarming indicated that
there were RFR levels in excess of the MPE limit for the general public in
the vicinity of the KZTQ transmitter.
See LOI response, Attachment 2; see also Application for Review,
Attachment - Response to Notice of Apparent Liability for Forfeiture at 3,
note 4.
Americom Las Vegas Limited Partnership, Notice of Apparent Liability for
Forfeiture, 17 FCC Rcd 26689 (Enf. Bur. 2002) (finding that, based on RFR
measurements conducted in May 2002 by FCC agents and by Americom's
consultant, the operation of KZTQ (formerly KWNZ) created RFR fields that
exceeded the RFR exposure limits for the public in unfenced, publicly
accessible areas).
OET Bulletin 65, "Evaluating Compliance with FCC Guidelines for Human
Exposure to Radiofrequency Electromagnetic Fields" (August 1997) ("OET
Bulletin 65").
Forfeiture Order at 9645-9646.
Application for Review at 2 - 3.
A-O Broadcasting Corporation, Notice of Apparent Liability, 17 FCC Rcd
24184 (2002); forfeiture ordered, Forfeiture Order, 18 FCC Rcd 27069
(2003).
MO&O at 14289-14291.
Petition at 1-5.
Petition at 2.
Petition at 1-3.
Petition at 3-4.
Petition at 4.
Petition at 4-5.
47 C.F.R. S: 1.106(b)(3).
See, e.g., Hexagram, Inc, Order on Reconsideration, 22 FCC Rcd 1795
(Wireless Tel. Bur., Mobility Div. 2007) (petitioner failed to support its
arguments with any new facts or circumstances that changed after the
filing of its application for review); Alvin Lou Media, Inc., Order on
Reconsideration, 20 FCC Rcd 17234, 17235 (Media Bur., Audio Div. 2005)
(petitioner did not cite to facts or events that occurred or circumstances
that have changed since petitioner's last opportunity to present such
matters or that were unknown to petitioner and could not have been learned
through the exercise of ordinary diligence); James Kay, Jr., Order on
Reconsideration, 19 FCC Rcd 2938, 2940 (Wireless Tel. Bur., Mobility Div.
2004) (argument did not rely on any new facts or changed circumstances),
affirmed, Order, 20 FCC Rcd 12228 (2005); and Modification and
Clarification of Policies and Procedures Governing Siting and Maintenance
of Amateur Radio Antennas and Support Structures, and Amendment of Section
97.15 of the Commission's Rules Governing the Amateur Radio Service,
Memorandum Opinion and Order, 17 FCC Rcd 19408, 19412 (Wireless Tel. Bur.,
Pub. Safety and Priv. Wireless Div., 2002) (argument did not relate to any
new facts or changed circumstances requiring reconsideration of
Commission's Order).
Petition at 2.
Petition at 1-3.
Petition at 3-4.
47 U.S.C. S: 504(a).
See 47 C.F.R. S: 1.1914.
Federal Communications Commission DA 07-4720
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Federal Communications Commission DA 07-4720